justice committee agenda 33rd meeting, 2020 (session 5) · 2021. 1. 29. · j/s5/20/33/a justice...

J/S5/20/33/A

JUSTICE COMMITTEE

AGENDA

33rd Meeting, 2020 (Session 5)

Tuesday 15 December 2020

The Committee will meet at 10.00 am in the David Livingstone Room (CR6). 1. Decision on taking business in private: The Committee will decide whether to

take item 8 in private. 2. Domestic Abuse (Protection) (Scotland) Bill: The Committee will take

evidence on the Bill at Stage 1 from—

Patrick Down, Criminal Law & Practice Team Leader, Anne Cook, Head ofSocial Housing Services, Katherine Mcgarvey, Solicitor, ScottishGovernment Legal Directorate, and Rachel Nicholson, Solicitor, ScottishGovernment Legal Directorate, Scottish Government.

3. Covert Human Intelligence Sources (Criminal Conduct) Bill 2019-21 (UKParliament legislation): The Committee will take evidence on legislativeconsent memorandum LCM(S5)48 from—

Humza Yousaf, Cabinet Secretary for Justice, Graeme Waugh, Defence,Security & Cyber Resilience (DSCR), and Douglas Kerr, Solicitor, ScottishGovernment Legal Directorate, Scottish Government.

4. Covert Human Intelligence Sources (Criminal Conduct) Bill 2019-21 (UKParliament legislation): The Committee will consider the legislative consentmemorandum lodged by Humza Yousaf, Cabinet Secretary for Justice(LCM(S5)48).

5. Subordinate legislation: The Committee will consider the following negative

instruments—

The Regulation of Investigatory Powers (Prescription of Offices, etc, andSpecification of Public Authorities) (Scotland) Amendment Order 2020(SSI 2020/361)

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The Management of Offenders etc. (Scotland) Act 2005 (Specification ofPersons) Amendment Order 2020 (SSI 2020/365)

6. Justice Sub-Committee on Policing: The Committee will consider a reportback from the Sub-Committee meeting held on 7 December 2020.

7. Domestic Abuse (Protection) (Scotland) Bill (in private): The Committee will

review the evidence heard earlier in the meeting. 8. Covert Human Intelligence Sources (Criminal Conduct) Bill 2019-21 (UK

Parliament legislation): The Committee will review the evidence heard earlierin the meeting.

Stephen ImrieClerk to the Justice Committee

Room T2.60The Scottish Parliament

EdinburghTel: 0131 348 5195

Email: [email protected]

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The papers for this meeting are as follows— Agenda item 2

Note by the Clerk J/S5/20/33/1

SPICe Briefing J/S5/20/33/2

PRIVATE PAPER J/S5/20/33/3 (P)

Agenda item 3

Legislative Consent Memorandum J/S5/20/33/4

PRIVATE PAPER J/S5/20/33/5 (P)

Agenda item 5


Agenda item 6


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1

Justice Committee

33rd Meeting, 2020 (Session 5), Tuesday, 15 December 2020

Domestic Abuse (Protection) (Scotland) Bill

Paper from the Clerk

Introduction

1. The Domestic Abuse (Protection) (Scotland) Bill (“the Bill”) was introduced by the Cabinet Secretary for Justice on 2 October 2020. The Bill and accompanying documents can be found here.

2. According to the Scottish Government the provisions of the Bill are intended to improve the protections available for people who are at risk of domestic abuse, particularly where they are living with the perpetrator of the abuse. 3. The Policy Memorandum states that the Bill will do this by providing courts with a new power to make a Domestic Abuse Protection Order (“DAPO”) which can impose requirements and prohibitions on a suspected perpetrator of domestic abuse, including removing them from a home they share with a person at risk and prohibiting them from contacting or otherwise abusing the person at risk while the order is in effect. 4. The Bill will also provide a power for the police, where necessary, to impose a very short-term Domestic Abuse Protection Notice (“DAPN”) ahead of applying to the court for a full order. 5. The Bill is also intended to help improve the immediate and longer-term housing outcomes of domestic abuse victims who live in social housing, including by helping to avoid homelessness. 6. The Bill will do this by creating a new ground on which a social landlord can apply to the court to end the tenancy of the perpetrator with a view to transferring it to the victim of domestic abuse or end the perpetrator’s interest in the tenancy where the perpetrator and victim are joint tenants, and enable the victim to remain in the family home. Approach to Stage 1 consideration 7. The Committee agreed to begin taking Stage 1 oral evidence on the Bill on Tuesday 15 December by hearing from the officials of the Scottish Government Bill team. Stage 1 scrutiny of the Bill will to continue during December and January 2021. Oral evidence

8. At its meeting on 15 December, the Committee will hear from—

Patrick Down, Criminal Law & Practice Team Leader

https://beta.parliament.scot/bills/domestic-abuse-protection-scotland-billhttps://beta.parliament.scot/bills/domestic-abuse-protection-scotland-billhttps://beta.parliament.scot/-/media/files/legislation/bills/current-bills/domestic-abuse-protection-scotland-bill/introduced/policy-memorandum-domestic-abuse-protection-scotland-bill.pdfhttps://beta.parliament.scot/-/media/files/legislation/bills/current-bills/domestic-abuse-protection-scotland-bill/introduced/policy-memorandum-domestic-abuse-protection-scotland-bill.pdf

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Anne Cook, Head of Social Housing Services Katherine Mcgarvey, Solicitor, Scottish Government Legal Directorate Rachel Nicholson, Solicitor, Scottish Government Legal Directorate

9. This evidence session will be a hybrid session with some Members and witnesses present and others participating via live video conferencing. Members of the public can watch the evidence session live on Scottish Parliament TV from 10:00 am on Tuesday 15 December. 10. Following the evidence session, the Committee will consider the evidence received as part of the Stage 1 scrutiny of the Bill. Written evidence 11. Written submissions received by the Committee in response to its call for views on the Bill are available here. 12. A SPICe briefing setting out the key issues in the Bill is also available here.

Next steps

13. At its next meeting on Tuesday 22 December, the Committee will continue its Stage 1 scrutiny and will hear from interested stakeholders.

Justice Clerks 10 December 2020

https://www.scottishparliament.tv/https://www.scottishparliament.tv/https://yourviews.parliament.scot/justice/domestic-abuse-protection-bill/consultation/published_select_respondenthttps://yourviews.parliament.scot/justice/domestic-abuse-protection-bill/consultation/published_select_respondenthttps://digitalpublications.parliament.scot/ResearchBriefings/Report/2020/12/9/9aebc876-0895-11eb-83ec-000d3a23af40https://digitalpublications.parliament.scot/ResearchBriefings/Report/2020/12/9/9aebc876-0895-11eb-83ec-000d3a23af40

9 December 2020SB 20-79

SPICe BriefingPàipear-ullachaidh SPICe

Domestic Abuse (Protection)(Scotland) BillSarah Harvie-Clark

The Domestic Abuse (Protection)(Scotland) Bill aims to betterprotect people at risk of domesticabuse by introducing new powersfor the police, the courts and sociallandlords. This briefing provides anoverview of the Bill, including whatwas said in response to theassociated Scottish Governmentconsultation and how similarprotective powers have worked inother countries.

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ContentsExecutive Summary _____________________________________________________4Introduction and overview ________________________________________________6

The story so far ________________________________________________________6

What this briefing covers _________________________________________________7

What the Bill does - a summary ____________________________________________8The people affected by the new powers (section 1) ____________________________8

Abusive behaviour (sections 2, 3, 4 and 8) ___________________________________8

Domestic Abuse Protection Notices (sections 4-7) _____________________________8

Domestic Abuse Protection Orders (sections 8-16)_____________________________9

A new ground to end a tenancy where there has been abusive behaviour (section18) __________________________________________________________________9

Part 1 of the Bill: Domestic Abuse Protection Notices and Orders ______________ 11Background to Part 1 of the Bill ___________________________________________ 11

A note on terminology ________________________________________________ 11

The Istanbul Convention ______________________________________________ 11

Cross-border effect___________________________________________________12

Existing protective powers _____________________________________________12

Civil protective orders _______________________________________________12

Police and criminal court powers ______________________________________16

The experience of other countries _______________________________________18

An overview ______________________________________________________18

Domestic abuse support services______________________________________18

England and Wales_________________________________________________19

Part 1 of the Bill: in more detail ___________________________________________21

DAPNs - the concept of a short-term notice imposed by the police______________21

The Scottish Government's consultation ________________________________21

DAPOs - the concept of a court-imposed order _____________________________22


The consent of the person at risk________________________________________23


Which individuals are covered by a DAPN or DAPO ________________________23


The term 'abusive behaviour' __________________________________________24


Who can apply for a DAPO ____________________________________________26

Domestic Abuse (Protection) (Scotland) Bill, SB 20-79

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Which court can grant a DAPO and in what circumstances____________________27


The content of a DAPN and a DAPO _____________________________________28

DAPNs __________________________________________________________28

DAPOs __________________________________________________________29


The duration of a DAPN and a DAPO ____________________________________30

The duration of a DAPN _____________________________________________30

The duration of a DAPO _____________________________________________31

Breach of a DAPN/DAPO: a criminal offence_______________________________32

Penalties for breach of a DAPN _______________________________________32

Penalties for breach of a DAPO _______________________________________33


What's not in Part 1 of the Bill ____________________________________________34

Statutory duty of referral to support services _______________________________34

Exclusion orders_____________________________________________________34

Legal aid___________________________________________________________35

Part 2 of the Bill: a new power for social landlords ___________________________36The policy background__________________________________________________36

The Homelessness and Rough Sleeping Action Group_______________________36

The working group co-chaired by Scottish Women's Aid and the CharteredInstitute of Housing___________________________________________________37

The existing law _______________________________________________________37

Matrimonial Homes (Family Protection) (Scotland) Act 1981, section 13 _________37

Housing (Scotland) Act 2001 ___________________________________________38

Section 20 - notice to end an interest in a joint tenancy _____________________38

Ground 1 - ending a tenancy where there is a breach of a tenancy agreement___38

Grounds 2, 7 and 8 - ending a tenancy based on the conduct of a tenant_______39

Ground 15 - ending a tenancy where one person no longer wishes to live withthe other _________________________________________________________39

Section 18 of the Bill - a new ground to end a tenancy where there has beenabusive behaviour _____________________________________________________39

The notice period the landlord must give the tenant _________________________40

Other key features of section 18 ________________________________________40

Bibliography___________________________________________________________42


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Executive SummaryThe Domestic Abuse (Protection) (Scotland) Bill would add to the legal remedies availableto help protect people at risk of domestic abuse.

New protective powers

Part 1 of the Bill, the main part of the Bill, proposes two new powers, which do not requirethe consent of a person at risk to be exercised:

• the power available to a senior police officer to impose a Domestic AbuseProtection Notice (DAPN) on a suspected perpetrator of abuse

• the power available to the civil court, on application by the police, to grant a DomesticAbuse Protection Order (DAPO) in relation to a perpetrator of abuse.

The DAPN is intended to be very short-term in its effect lasting until the court reaches adecision about whether to impose a DAPO (or an interim DAPO). The Bill proposes that aDAPO could last up to three months in total.

Preventing contact - including with children that live with the person at risk

Under the Bill, a DAPN and a DAPO could impose a range of requirements andrestrictions on the suspected perpetrator. This includes preventing him or her fromapproaching or contacting the person at risk, or a child who lives with the person at risk,including a child of the person subject to the measure.

Exclusion from the home

A DAPN and a DAPO could also require an individual to leave, and stay away from, aplace where the person at risk lives. This power to exclude would extend to a propertywhere the person subject to the measure is the (sole or joint) owner or tenant.

Other features of the DAPN and a DAPO

Despite the role for the police under Part 1, DAPNs and DAPOs would be protectionsprovided by civil law. Accordingly, there is no requirement in the Bill for the individual inquestion to have been charged with, or convicted of, a criminal offence before such anotice or order could be imposed. Such a charge or conviction may happen as wellthough, as part of existing criminal law processes.

Separately, breach of a DAPN or a DAPO without reasonable excuse would, of itself, be acriminal offence (and could be investigated as such by the police).

Policy aims

These proposed measures have several policy aims. One aim is to protect a person at riskin the immediate situation. Another aim is to create time for any further legal steps to betaken to ensure the longer-term safety of the person at risk.

Yet another aim is to give that person space to consider his or her housing options. TheGovernment wants to reduce the chances that the person at risk becomes homeless orfeels that he or she, rather than the suspected perpetrator, must find somewhere new to


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https://beta.parliament.scot/bills/domestic-abuse-scotland-bill

live. 1

The Scottish Government's consultation

When the Scottish Government consulted in 2018 on what is now in Part 1 of the Bill, therewas strong support for the concepts of both a DAPN and a DAPO. 2 3

There were mixed views on some topics, such as who should be covered by the protectivemeasures - partners and ex-partners, or a broader category of people sharing the samehousehold. The Government also received a variety of responses on who should be ableto apply for a DAPO - just the police or other organisations and individuals as well.

The Government also received a range of responses in relation to how long both DAPNsand DAPOs should last for. One key policy choice was between a DAPO functioning as ashort-to-medium term measure only or a longer-term measure as well. 2

On the question of which courts should be able to grant a DAPO, a significant majority ofthe respondents who answered the relevant consultation question thought that the criminalcourts (as well as the civil courts) should have this power. 2 However, the Bill restricts thepower to the civil courts. In the Policy Memorandum, the Government noted that, whileindividuals were overwhelmingly in favour of criminal courts having the power,organisations were fairly evenly divided on what the approach should be. 1

New powers for social landlords

Although most of the Bill relates to DAPNs and DAPOs, Part 2 of the Bill also proposes anew power for social landlords to end a tenant's interest in a tenancy where there hasbeen domestic abuse. Here the Scottish Government wants to help tenants affected bydomestic abuse remain in the family home. It wants them to avoid a move into temporaryemergency accommodation and then, longer-term, having to be rehoused permanently.

Section 18, which was not part of the main consultation on the Bill, has its origins in therecommendations of two Scottish Government working groups. The first working group,the Homelessness and Rough Sleeping Action Group, consulted on wide-rangingproposals. The work of the second group, co-chaired by Scottish Women's Aid and theChartered Institute of Housing, was disrupted by the pandemic. The second group stronglysupports section 18 but has not consulted externally on it.


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https://consult.gov.scot/justice/people-at-risk-of-domestic-abuse/https://beta.parliament.scot/-/media/files/legislation/bills/current-bills/domestic-abuse-protection-scotland-bill/introduced/policy-memorandum-domestic-abuse-protection-scotland-bill.pdfhttps://www.gov.scot/groups/homelessness-and-rough-sleeping-action-group/https://womensaid.scot/https://www.cih.org/

Introduction and overviewThe Domestic Abuse (Protection) (Scotland) Bill ('the Bill') was introduced in the ScottishParliament on 2 October 2020, along with a Policy Memorandum 1 , Explanatory Notes 4

and a Financial Memorandum. 5

Part 1 of the Bill provides a power, where necessary, for a senior police officer to impose avery short-term Domestic Abuse Protection Notice (DAPN). Part 1 also provides the civilcourts with a new power, on application by the police, to make a Domestic AbuseProtection Order (DAPO). The civil courts can also make an interim DAPO under Part 1to offer protection from harm pending full consideration of the case.

Section 18, the sole provision in Part 2 of the Bill, contains a separate power for sociallandlords relating to a tenant's abusive behaviour.

The story so farCalls for the reforms now contained in Part 1 of the Bill began in earnest during theparliamentary passage of what became the Domestic Abuse (Scotland) Act 2018. Thislegislation overhauled the criminal law, creating a specific stand-alone criminal offence ofdomestic abuse. The new offence covers not just physical abuse but other forms ofpsychological abuse and coercive and controlling behaviour that were previously difficult toprosecute.

At Stage 1 of the Justice Committee's consideration of this earlier legislation (in 2017), anumber of third sector organisations argued there was a gap in the existing law. They saida person wishing to obtain protection from domestic abuse, particularly in relation tokeeping a perpetrator away from their home, could only do so in two sets ofcircumstances. First, where the perpetrator enters the criminal justice system. Second, ifthe person at risk applies for a civil court order against the perpetrator.

Following a committee evidence session on this topic at Stage 2 of the Bill, 6 the thenCabinet Secretary for Justice, Michael Matheson MSP, wrote to the Justice Committee. Heconfirmed that the Scottish Government intended to publish a consultation on whatadditional protections (if any) might be necessary. 7

This Scottish Government consultation followed in late 2018 3 and an analysis of theconsultation responses was then published in July 2020. 2 Individual consultationresponses, where permission has been given for them to be published, also appear on theconsultation's webpage.

In September 2020, the Programme for Government for 2020-21 was published. In it, theGovernment commented:

The Programme for Government then describes the Bill as part of a suite of measures

“ The experience of lockdown reiterated the importance of protecting women and girlswho are isolated and vulnerable during unprecedented times, and facing domesticabuse.”Scottish Government, 20208


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https://beta.parliament.scot/bills/domestic-abuse-protection-scotland-bill#target1https://beta.parliament.scot/-/media/files/legislation/bills/current-bills/domestic-abuse-protection-scotland-bill/introduced/policy-memorandum-domestic-abuse-protection-scotland-bill.pdfhttps://beta.parliament.scot/-/media/files/legislation/bills/current-bills/domestic-abuse-protection-scotland-bill/introduced/explanatory-notes-domestic-abuse-protection-scotland-bill.pdfhttps://beta.parliament.scot/-/media/files/legislation/bills/current-bills/domestic-abuse-protection-scotland-bill/introduced/financial-memorandum-domestic-abuse-protection-scotland-bill.pdfhttps://www.legislation.gov.uk/asp/2018/5/contents/enactedhttps://www.parliament.scot/parliamentarybusiness/CurrentCommittees/justice-committee.aspxhttps://www.parliament.scot/parliamentarybusiness/CurrentCommittees/104168.aspxhttp://www.parliament.scot/parliamentarybusiness/report.aspx?r=11165https://www.parliament.scot/S5_JusticeCommittee/Inquiries/20171107CSfJtoMM.pdfhttps://consult.gov.scot/justice/people-at-risk-of-domestic-abuse/https://www.gov.scot/publications/protective-orders-people-risk-domestic-abuse-analysis-consultation-responses/https://www.gov.scot/publications/protective-orders-people-risk-domestic-abuse-analysis-consultation-responses/https://consult.gov.scot/justice/people-at-risk-of-domestic-abuse/consultation/published_select_respondenthttps://consult.gov.scot/justice/people-at-risk-of-domestic-abuse/consultation/published_select_respondenthttps://www.gov.scot/publications/protecting-scotland-renewing-scotland-governments-programme-scotland-2020-2021/https://www.gov.scot/publications/protecting-scotland-renewing-scotland-governments-programme-scotland-2020-2021/

which would continue to implement the Scottish Government's Equally Safe Strategy inthis parliamentary year.

The Justice Committee was designated lead committee on the Bill. On 10 November 2020,it issued a call for views with a closing date of 4 December 2020. Where permission fortheir publication has been given, written submissions are published on the Committee'swebpage.

What this briefing coversThis briefing provides the background to the reforms. It also includes a description of theexisting law, both civil and criminal, which applies to domestic abuse.

The briefing provides a summary of the Bill's provisions. It also discusses the Bill in detail,referring to views from the Scottish Government's consultation.

As the Justice Committee's call for views on the Bill closed on 4 December 2020, ithas not been possible to incorporate a discussion of the written submissions to theCommittee into this SPICe Briefing.

The briefing also describes consultation proposals from 2018 that did not make it in to theBill. These include a statutory duty on the police to refer the person at risk to domesticabuse support services (when making an application to the courts for a DAPO or putting inplace a DAPN).

Other consultation proposals which did not make it into the Bill include those which aimedto improve the effectiveness of an existing type of civil court order, known as an exclusionorder. This can exclude a suspected perpetrator from his or her home for the long term.Despite its potential importance, at present, an exclusion order is rarely applied for inpractice.


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https://www.gov.scot/policies/violence-against-women-and-girls/equally-safe-strategy/https://www.parliament.scot/parliamentarybusiness/CurrentCommittees/justice-committee.aspxhttps://yourviews.parliament.scot/justice/domestic-abuse-protection-bill/https://yourviews.parliament.scot/justice/domestic-abuse-protection-bill/consultation/published_select_respondenthttps://yourviews.parliament.scot/justice/domestic-abuse-protection-bill/consultation/published_select_respondenthttps://consult.gov.scot/justice/people-at-risk-of-domestic-abuse/

What the Bill does - a summaryThis section of the briefing summarises the main provisions of the Bill. Later sections ofthe briefing discuss the Bill in more detail, including key policy issues associated with theBill.

The people affected by the new powers (section 1)Section 1 of the Bill sets out who would be protected by a (police-imposed) DAPN or a(court-imposed) DAPO and who would be subject to that notice or order. Section 1requires the two people concerned to be spouses, civil partners or in an 'intimatepersonal relationship' with each other (or formerly in such relationships with eachother). Other family relationships, or sharing a home in other circumstances, for exampleas flatmates, are not covered.

Under section 1, to be able to be covered by a DAPN or DAPO, a suspected perpetrator('person A') must be aged 18 or over and the person at risk ('person B') must be 16 orover.

Abusive behaviour (sections 2, 3, 4 and 8)Sections 2 and 3 of the Bill describe what would constitute abusive behaviour, a termimportant in the context of a DAPN or DAPO. Abusive behaviour extends beyond physicalharm to include psychological harm and coercive and controlling behaviour.

Sections 4 and 8 of the Bill say abusive behaviour occurring outside Scotland, includingoverseas, can be taken into account.

Domestic Abuse Protection Notices (sections 4-7)Section 4 of the Bill also says a DAPN can be made by a senior police officer (aninspector or above). Section 4 also sets out the proposed test which must be met before aDAPN can be made. This includes that a DAPN must be necessary to protect the personat risk from abusive behaviour in the period before the court can make a DAPO (or interimDAPO).

Sections 5 and 6 of the Bill set out the required content and legal effect of a DAPN. ADAPN can exclude the suspected perpetrator from a home and impose widerrestrictions on contact.

Section 5 (in conjunction with section 11) proposes that a DAPN lasts until a DAPO orinterim DAPO is made - or, if no such order is made, until the associated court hearingends.

Section 7 of the Bill says a person commits a criminal offence if they breach a DAPN,without reasonable excuse. This would be punishable by imprisonment (up to 12 months)or a fine (up to £1,000) or both.


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Domestic Abuse Protection Orders (sections 8-16)Section 8 of the Bill sets out who would be able to apply for a DAPO. The applicationwould be in the name of the chief constable, but, due to the effect of other existinglegislation 9 , various ranks of police officer could prepare the application.

Section 15 of the Bill says who can grant a DAPO, namely the local sheriff court, in civil(but not criminal) court proceedings.

Section 8 also sets out the issues or views that the sheriff must take into account,including the views of the person at risk and the welfare of a child relevant to theapplication.

In addition, section 8 also sets out the test which the sheriff must apply before a DAPOcan be made. A key requirement is that a DAPO is necessary for protecting the person atrisk from abusive behaviour.

Section 9 of the Bill sets out the proposed content and effect of a DAPO. Therequirements and restrictions which could be imposed in the order include, but are notlimited to, the measures which can be imposed in a DAPN.

Section 9 says the initial duration of a DAPO is up to two months (pending anyextensions authorised by sections 12 and 13).

Section 10 of the Bill would allow the sheriff to make an interim DAPO if, on the balanceof convenience, it is just to do so. One of the issues which the sheriff must consider is therisk that, if such an order is not made, the suspected perpetrator will cause 'harm' (notfurther defined in that context) to the person at risk.

Section 11 of the Bill applies where a DAPN has been made. It makes provision about theinitial court hearing to determine whether a DAPO or interim DAPO should be made,including in what time frame it must happen. A hearing can be as little as two days afterthe DAPN is imposed, although it may be longer, depending on where a weekend or apublic holiday falls.

Sections 12 to 14 of the Bill set out the circumstances in which DAPOs - and interimDAPOs - can be varied, extended or terminated (discharged). Under these provisions, themaximum permitted duration of a DAPO (plus any extensions) would be three months. Foran interim DAPO, its maximum permitted duration (plus any extensions) would be threeweeks.

Section 16 of the Bill says that breaching a DAPO, without reasonable excuse, would bea criminal offence. This would be punishable by imprisonment (up to 5 years) or a fine (orboth).

A new ground to end a tenancy where there hasbeen abusive behaviour (section 18)Where there is abusive behaviour, section 18 of the Bill creates a new ground underwhich social landlords can end a tenant's interest in a tenancy. The new ground covers the


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situation where there is the suspected perpetrator is the a sole tenant and the person atrisk is another occupier. It also covers where the couple (or ex-couple) are joint tenants.


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Part 1 of the Bill: Domestic AbuseProtection Notices and OrdersThis section of the briefing considers Part 1 of the Bill (the bulk of the Bill in practice). Part1 would create the system of (police-imposed) DAPNs and (court-imposed) DAPOs. Alater section of the briefing considers Part 2 of the Bill, which would create a new power forsocial landlords.

Background to Part 1 of the BillBefore Part 1 of the Bill is considered in detail, this section of the briefing covers varioustopics considered helpful to understanding Part 1. This includes the existing law and theexperience of other countries.

A note on terminologyThe term protective order is used in this briefing to refer to court measures, both existingand proposed, which aim to offer protection from domestic abuse (or other forms of harm).

When court orders are protections offered by the civil law, as opposed to the criminal law,they are often described as civil protective orders, an approach also followed in thisbriefing.

The term emergency barring order (EBO) is what some other countries, as well as someacademic and policy commentators, call a short-term protective order of the type nowproposed in the Bill. This term does not appear in the Bill or indeed elsewhere in thisbriefing.

The Istanbul ConventionAn important piece of background to the Bill is that UK has signed, but not yet ratified,an international treaty called the Council of Europe Convention on Preventing andCombating Violence against Women and Domestic Violence (usually referred to as theIstanbul Convention). 10

An ongoing policy issue for both the UK and Scottish governments is getting to the stagewhere the UK can ratify the Istanbul Convention, so it is binding on the country as a matterof international law.

Article 52 of the Convention says countries must ensure protection to victims of domesticviolence via a short-term protective order, suitable for situations of "immediate danger".

A 2017 paper published by the Council of Europe on the Istanbul Convention comments:

“ "If the victim has to wait ... even for 24 hours, it may be too long in cases ofimmediate danger …”Logar, 201711


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https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/210https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/210https://rm.coe.int/convention-istanbul-article-52/168073e0e7

The potential limitations of Scotland's current system, in terms of compliance with Article52, is explored later in this briefing.

A key message from the academic material on the Istanbul Convention is that short-termprotective orders should only be viewed as one of a wide range of measures (legal andnon-legal) which make up an effective response to the issue of domestic abuse. 11 TheConvention specifies a range of other necessary features of an effective system, including:

• longer-term protective orders

• strong multi-agency co-operation

• sufficient financial and human resources for the implementation of integrated policies.

Cross-border effectAnother preliminary issue worth noting is that the DAPNs and DAPOs proposed forScotland would only have legal effect in Scotland. So, for example, it would not be acriminal offence in Scotland to do something in another part of the UK which contravenesa Scottish DAPN or DAPO.

In contrast, DAPNs and DAPOs proposed in the UK Bill for England and Wales wouldhave cross-border legal effect. Accordingly, it would be a criminal offence in England andWales to do something in Scotland (or Northern Ireland) which contravenes a DAPN orDAPO created under the UK Bill. 12

The 2017 paper on the Istanbul Convention argued that cross-border protection is adesirable feature of short-term protective orders. 13 However, it does not specificallymention the situation in the UK where there are different legal systems in place and,therefore, there are internal borders to consider as well.

Existing protective powersThis section of the briefing describes the existing powers available to the police and thecourts in Scotland in relation to domestic abuse.

Civil protective orders

As noted earlier, when court orders are protections available under the system of civil law,as opposed to the criminal law, they are often described as civil protective orders.

Sometimes a civil protective order can be granted by a criminal court at the end of asuccessful prosecution, for example, as is the case with a non-harassment order.

The criminal court will make the order if satisfied 'on the balance of probabilities' this isappropriate (i.e. the standard which also applies in civil cases). The matter does nothave to be proved 'beyond reasonable doubt' (i.e. the standard which usually appliesin criminal cases).


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An overview

At present, Scotland has an established system of civil protective orders. The maincategories of civil protective order currently available to protect against abuse, includingdomestic abuse, are:

• non-harassment orders

• interdicts

• exclusion orders.

There are also civil protective orders for specific types of harm, such as the forcedmarriage protection order (created in 2011) 14 and the female genital mutilation protectionorder (created earlier 2020, with most relevant statutory provisions not yet in force). 15 Inthe context of this Bill, these are useful examples of modern civil protective orders forcomparative purposes.

The main types of civil protective order relating to domestic abuse at present are describedin more detail later. First, there are a number of general points which can be made aboutthe current system.

Possible future reform

The Scottish Law Commission, which makes recommendations for law reform to ScottishMinisters, has said it may review available civil protective orders for domestic abuse atsome future date. At the time of writing, no final decisions have been taken.

A complex system

The existing system of civil protective orders has evolved piecemeal through successivereforms over a period of nearly thirty years. The end result is arguably very complex. 16

One issue is that some types of civil protective order still focus on one specific categoryof person at risk (e.g. spouses or civil partners) - wholly or partially excluding othervulnerable individuals.

There is also something of a split in existing civil protective orders, in terms of theirfunction. For example, exclusion orders focus on excluding the suspected perpetratorfrom the person at risk's home (and the vicinity of it). Other protective orders (e.g.interdicts) prohibit contact with, and harm to, the person at risk.

This contrasts with an approach where one court order performs both functions, as is nowproposed in the Bill. The 2017 paper on the Istanbul Conventionargues a single orderoffering this two-fold protection is more desirable. 11

The role of the person at risk and a court-based system

At present, civil protective orders often have to be applied for by the person at risk,rather than by a public body, through the civil courts. Unless all the legal costs are fully met


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out of the legal aid budget, this has cost implications for that person, as well as beingpotentially very stressful.

The system also places an exclusive reliance on orders imposed by the court, asopposed to by the police or another public body. It has been argued that an entirely court-based approach cannot fulfil the role envisaged by the Istanbul Convention, i.e.emergency protection from immediate danger. For example, the 2017 paper on theIstanbul Convention commented:

Under this analysis, the existing Scottish system of civil protective orders ispredominantly a system offering longer-term (not immediate or short-term) protectionto the person at risk.

The main civil protective orders in more detail

This section of the briefing considers the main types of civil protective order in more detail.

Non-harassment orders (NHOs)

An important power the court has is to impose a non-harassment order (NHO). 17Harassment is something which causes alarm or distress and can be one-off conductwhere the harassment amounts to domestic abuse. 18

An NHO can be applied for through the civil court by a person at risk (but this is quite rarein practice). Although a civil court order, it can also be granted by the criminal court at theend of a criminal case. Since April 2019, at the conclusion of a domestic abuse case, thecriminal court has been strongly encouraged by statute to grant such an order. 19 Fordomestic abuse cases, the court is also strongly encouraged by legislation to include arestriction relating to a child involved in the case. 20

Breach of an NHO, without reasonable excuse, is a criminal offence (and can beinvestigated as such by the police). It is punishable by fine and/or imprisonment of up tofive years.

“ This solution presents several disadvantages. The protection can hardly be providedimmediately, unless courts are accessible around the clock, which is rarely the case.Even if the law requires a court to make the decision within 24 hours, as in Bulgaria,victims or persons at risk have to wait to get protection, which can be dangerousbecause during this time the perpetrator has full access to them.”Logar, 201711


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NHOs and the person at risk's home

An important limitation of an NHO is that it can only impose a restriction on thesuspected perpetrator, not a positive obligation.

Accordingly, if a suspected perpetrator has already left the person at risk's home, thecriminal courts, when imposing an NHO, will sometimes require him or her to stayaway from that home (or the vicinity of it).

However, such an NHO could not empower the removal of a suspected perpetratorfrom a home he or she currently owns, rents or otherwise shares with the person atrisk.

The Scottish Government advises that the civil courts do not usually make NHOscontaining any restrictions relating to a person at risk's home. 21 The difference ofapproach appears to be a matter of practice, rather than a difference in the scope ofthe criminal and civil courts' discretion in this regard.

Interdicts

An interdict aims to stop or prevent behaviour by another person, including abusivebehaviour. Types of interdict include:

• a common law interdict, available under the branch of law developed by decisions incourt cases, rather than by legislation

• an interdict under the 1997 Act, which can be granted instead of an NHO

• a matrimonial interdict, only available between spouses 22

• a relevant interdict, only available between civil partners 23

• a domestic interdict, only available between cohabitants 24

• a domestic abuse interdict, 25 discussed in more detail below.

In 2005, during the parliamentary passage of what became the Family Law (Scotland)Act 2006, the then Justice 1 Committee (unsuccessfully) recommended in its Stage 1Report that the then Scottish Executive should consult stakeholders “as a matter ofurgency” with a view to simplifying the law on interdicts. 26

It is possible, as part of the application for an interdict, to apply for powers of arrest(without a warrant from the court) to be attached to that interdict. On breach of such aninterdict, the perpetrator can be detained in police custody. The court can later imprisonthe person for up to two days. 27

It is also possible to apply to the court to have an interdict labelled a domestic abuseinterdict. Where a power of arrest is also attached to a domestic abuse interdict, breach


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of that interdict is, of itself, a criminal offence. That offence is punishable by fine and/orimprisonment (up to five years). 28

Exclusion orders

Spouses and civil partners or, in some circumstances, cohabitants, can apply for anexclusion order in relation to a perpetrator of abuse. 29 This suspends a person’s rightto occupy their home and overrides their legal occupancy rights, for example as tenantor owner.

Part of the legal test which must be satisfied when applying for an exclusion order is basedon the necessity for protection but necessity can be overridden by a range of otherfactors, including the needs and resources of both parties.

Breach of an exclusion order is not, of itself, a criminal offence. In practice though, anexclusion order can be granted with an interdict. If this happens, and there is then abreach, there are more enforcement options.

The number of exclusion orders being applied for and granted is low. 3 As discussedin more detail later, the Scottish Government consulted on, but did not proceed with,reforms in the context of this Bill.

Police and criminal court powers

This part of the briefing discusses existing powers that the police and criminal courts canuse, in the context of an ongoing criminal investigation, to:

• remove a suspected perpetrator of domestic abuse from the home of a person at risk

• prevent him or her from returning to it.

Note that Police Scotland, in response to the consultation which preceded the Bill,supported the power on the police to impose a DAPN. It saw a legal gap in the existingpowers available to police officers when there was a) insufficient evidence to charge theperpetrator; and b) suspicions of ongoing risk which require immediate action. 30

The rest of the consultation responses, not all of which were supportive of theproposed new powers, are discussed in more detail later in the briefing.

Release on an undertaking

Where a suspected perpetrator of domestic abuse has been charged with a criminaloffence, the police can release them on what is known as an undertaking prior to a bailhearing. An undertaking is in place until the accused person first appears in court.

Such undertakings can include a condition imposed by the police that may require theaccused person not to approach the complainer and/or not to return to their shared place


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of residence. Any breach of these conditions is a criminal offence, with powers of arrestassociated with it. 31

Investigative liberation

Another option available to the police at the time of the incident is to arrest the perpetratorand remove them to a police station. Where that person is suspected of committing arelevant criminal offence, punishable by imprisonment, but the police wish to carry outfurther investigations to gather additional evidence, they can release the individual oninvestigative liberation. 32

Investigative liberation can last up to 28 days. In practice, conditions attached to it canprevent the person in question from approaching victims, witnesses or specific areas thatcontinue to be subject to police investigations. Any breach of the imposed conditions is acriminal offence with a power of arrest attached. 32 30

Remand a suspect in custody prior to trial

Once an accused person appears in court, either immediately after being charged, orfollowing release on undertakings, the court can remand a suspect in custody prior totrial.

There is a statutory presumption in favour of granting bail to an accused person, butthis may be overridden where certain criteria are met. This includes, for example, wherethe court has reason to believe that the individual may interfere with witnesses. Anotherexample is where there are reasonable grounds to believe the accused person wouldcommit further offences before their trial. 33

The Domestic Abuse (Scotland) Act 2018 added domestic abuse offences to the list ofoffences where a) if the accused has previously been convicted on indictment; and b) ischarged on indictment with a further offence, there is a presumption against bail. Herebail will only be granted in exceptional circumstances. 34

Special bail conditions

Where a court decides to release an accused person on bail, the court will imposestandard bail conditions and can, in addition, add special bail conditions. These specialbail conditions could require that the accused person does not attempt to approach orcontact the complainer, or return to a place of residence that they share with thecomplainer. 35

Any breach of court imposed bail conditions is a criminal offence with a power of arrestattached. 36


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The experience of other countriesThis part of the briefing considers the experience of other countries in introducing short-term protective orders equivalent to those proposed in the Bill. The system in England andWales (both existing and proposed) is examined in detail.

An overview

A range of other countries, such as England and Wales, the Netherlands, Austria,Germany and Spain have introduced short-term protective orders aimed at tacklingdomestic abuse.

Article 52 of the Istanbul Convention does not specify which body should make an orderfor this purpose, referring only to a 'competent authority.'

Most countries allow an administrative order to be made by public authority which takesimmediate effect, without first requiring to be approved by the court. That authority can bethe police, although, in some jurisdictions, it is the local authority or mayoralty.

This order usually runs for a short period of time during which the authority in question canapply to the court to put a protective order in place for a longer period of time (an approachwhich the Bill also proposes).

However, some countries do require an application to the court for any protective order,with a court decision required a short time after. Bulgaria and Spain are the examplesgiven in the paper published by the Council of Europe in 2017. As noted earlier, an entirelycourt-based approach was criticised in this paper as not able to adequately respond to'immediate danger', as required by the Istanbul Convention. 11

Domestic abuse support services

The Scottish Government consulted in 2018 on a statutory duty to refer a person at risk tosupport services. However, it did not include this proposal in its Bill.

A number of European jurisdictions introduced protective orders with state-fundeddomestic abuse support services in the same legislation. In some countries (includingAustria, the Netherlands and the Czech Republic) referral to these support services ismandatory under the relevant legislation, although this is not the case in Germany, forexample. 37

The mandatory provision of domestic abuse support is also not part of the currentlegislative scheme in England and Wales. The English academic, Professor Burton,commented in 2015:

However, mandatory referral to, or provision of, support services is also not part of the theproposed legislative scheme for England and Wales (a scheme discussed in more detaillater). The relevant UK Bill does propose a requirement on local authorities to publish, and

“ The value of integrating support into the ... process may … be a key lesson for otherjurisdictions like England and Wales.”Burton, 201738


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keep under review, a strategy relating to the provision of such services. 39

England and Wales

England and Wales' system of short-term protective orders was introduced in pilot form in2011 and rolled out across the jurisdiction in 2014. 40 The Domestic Abuse Bill, currentlybeing considered by the UK Parliament, proposes reforms to that system. 41 Against thisbackground, it is thought helpful to provide more detail on England and Wales.

The existing law

At present, the police in England and Wales can issue a Domestic Violence ProtectionNotice (DVPN), usually subject to a time limit of 48 hours. 42 The police can also apply tothe magistrates’ court for a Domestic Violence Protection Order (DVPO) which can lastup to 28 days. 43

Unlike what is proposed in the (Scottish) Bill, breach of a DVPN or DVPO in England andWales is not, of itself, a criminal offence.

The 2013 and 2016 research evaluations

The pilot system was independently evaluated at the request of the Home Office in 2013.44 After the nationwide rollout, the system was evaluated again by the Home Office in2016. 45

Researchers in the 2013 study attempted to evaluate the effect of DVPOs on the numberof repeat incidents of abuse. They found DVPOs had some positive effect of reducingpolice call-outs to repeat incidents, which was particularly pronounced in so-called‘chronic cases.’

The 2013 evaluation also found a majority of police and victims interviewed supportedthe new powers. A significant minority of police officers thought them “disproportionate”and a minority of people at risk were critical of decisions made without their participation.44

The 48 hour time limit for a DAPN also attracted criticism for various reasons, includingthat it gave police officers insufficient time to prepare a case for a DAPO.

The 2016 evaluation showed a wide variation in the use of the new powers by policebetween different geographical areas during the reporting period (8 March 2014 to 31December 2014), ranging from three made in Cambridgeshire to 229 in Essex.

Stakeholder workshops showed that the new powers had been positively received butsome issues were discussed. These included varying levels of awareness amongfrontline police officers in relation to the new powers. 45


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The 2017 report

More recently, in a 2017 report on the police response to domestic abuse, HMInspectorate of Constabulary and Fire & Rescue Services noted:

The 2018 UK Government consultation

In its 2018 consultation on the response to domestic abuse, the UK Government proposedto replace DVPNs and DVPOs with new Domestic Abuse Protection Notices (DAPNs)and Domestic Abuse Protection Orders (DAPOs). 47 The UK Government observed thatthe existing scheme can cause confusion:

The UK Government considered that replacing the existing scheme with new DAPNs andDAPOs would create “a single, flexible pathway for victims, police and other practitioners.”47

The Domestic Abuse Bill for England and Wales

The current UK Government Bill, the Domestic Abuse Bill 2019-21, follows on from theconsultation. 41 47 It proposes a new system of DAPNs and DAPOs which has thefollowing features:

• It would link to a new statutory definition of domestic abuse and would not be limitedto circumstances involving violence or threats of violence.

• The new definition covers situations involving partners and ex-partners, however, italso covers domestic abuse affecting other family members sharing a home andindeed anyone sharing a household.

• DAPOs would be available in a variety of courts on application by the police; theperson at risk; local authorities; independent abuse advisers; as well as others whohave the permission of the court.

• Despite the issues raised with the DVPN time limit under the existing system, DAPNswould also typically last for 48 hours.

• On the other hand, in a policy shift from the existing regime, there is no general

“ Many forces are still not using DVPOs as widely as they could, and opportunities touse them are continuing to be missed. Over half of the forces that were able toprovide data on the use of DVPOs reported a decrease in the number of DVPOsgranted per 100 domestic abuse related offences in the 12 months to 30 June 2016compared to the 12 months to 31 March 2015.”Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, 201746

“ Different parties, including victims, agencies and the police, can apply for differentorders and there is no single order that is applicable across the criminal, family andcivil court jurisdictions. This can lead to confusion for victims and practitioners indomestic abuse cases and problems with enforcement. ”HM Government, 201847


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maximum time limit proposed on a DAPO.

• DAPOs could include both prohibitions (for example, not to contact or come within aspecified distance of the victim) as well as positive requirements (for example,participation in drug and alcohol programmes).

• Breach of a DAPO (but not a DAPN) would, of itself, be a criminal offence, punishableby up to five years’ imprisonment.

• Breach of a DAPN would allow the police to arrest the person in breach without awarrant and hold them in custody until they could be brought before the court.

More detail about this Bill can be found in the research briefing published by theHouse of Commons Library. 48

Part 1 of the Bill: in more detailThis section of the briefing discusses Part 1 of the Bill, and associated consultationresponses, in more detail. The section is organised according to key policy issuesassociated with the Bill. As such, it has not always been possible to follow the numberingof the individual sections in Part 1.

As a reminder, a summary of the Bill, largely following the chronological order of thesections, can be found at the start of the briefing.

DAPNs - the concept of a short-term notice imposed by thepoliceSections 4-7 of the Bill propose a new power for a senior police officer to impose a veryshort-term notice (a DAPN) without prior court approval. Applying to the court for a DAPOmust promptly follow the making of a DAPN.


In its consultation, the Scottish Government asked whether the police should have a newpower to bar the suspected perpetrator from the home they share with the person at risk. 3

The great majority of respondents, including Police Scotland, supported this. Of thoserespondents that offered a view, 86% of respondents were in favour, 8% were opposedand 6% were unsure. 2 As an example of a response in favour, one victims' groupcommented:


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Respondents to this question raised a number of points about how the proposed newpower should be implemented, including the importance of ensuring that appropriatetraining and guidance on the use of such powers is put in place for police officers.

Of those respondents opposed, half were individual respondents, who highlighted whatthey regarded as the risk that the existence of such powers would encourage people tomake false allegations.

The Law Society of Scotland highlighted the importance of judicial oversight of anypower to remove suspected perpetrators from their own home. It commented:

DAPOs - the concept of a court-imposed orderSections 8-16 of the Bill propose a power available to the civil court to grant a DomesticAbuse Protection Order (DAPO) in respect of a perpetrator of abuse.


The Scottish Government's consultation asked whether the court should have the power togrant a protective order prohibiting the perpetrator from returning to the person at risk'shome. 3 (Note the DAPO in the Bill arguably goes further than this as it can require aperpetrator to leave a home he or she is currently living in.)

The great majority of respondents supported the scope of the proposed power, including asmall number who were opposed to the concept of a DAPN. In total, 88% of respondentssupported the proposed powers, with 6% opposed and 6% unsure. 2

The small number opposed were concerned with the risk of encouraging false allegations,including allegations by people who were actually perpetrators of abuse. One health andsocial care respondent questioned whether the new powers would add to the courts andpolice's existing powers to deal with domestic abuse:

“ It is absolutely crucial that there's an immediate short term solution available. [Thenotices] ... would allow police to take the necessary proactive steps to protect victimsin their home, without the victim having to leave (perhaps with children) for their ownsafety ... It will allow the Police and other key support agencies an opportunity toestablish the level of risk and give the victim much needed time to consider heroptions and choices and for other protective measures to be implemented.”Scottish Government, 20202

“ The courts play an essential role in ensuring fair, transparent and proportionateexercise of powers. This is particularly important in situations where preventativemeasures are being sought, where an individual has not been charged with anyoffence. The orders being proposed could result in a significant restriction of anindividual's right to private and family life and right to enjoy their property and shouldtherefore be handled with proper oversight and due process. Were this power to existit would require to be a truly exceptional situation and would need to be subject tojudicial determination at the earliest opportunity.”Scottish Government, 20202


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The consent of the person at riskNeither section 4 of the Bill (setting out the test for the making of a DAPN) nor section 8of the Bill (setting out the test for the making of a DAPO) require the consent of theperson at risk. This is in keeping with the approach to short-term protective ordersimposed by a number of other countries.


The Scottish Government's consultation asked whether the consent of the person at riskshould be required before an application is made to the court for a protective order by athird party (whether the police or another body). 3

There were mixed views on this question. Twenty eight per cent of respondents whoanswered the relevant question thought consent should be required, 46% did not thinkthis was necessary, and 26% didn't know or provided an ambiguous response. 2

Those respondents who thought consent should be required were concerned thatimposing an order without it was unlikely to be effective. For example, one health, socialwork and social care respondent commented that:

On the other hand, those who thought that consent should not be required were concernedthat people at risk may not always recognise the extent to which they are at risk. Oneindividual respondent, typical of a number of responses received, commented:

Which individuals are covered by a DAPN or DAPO

Section 1 of the Bill explains who is covered by a (police-imposed) DAPN and by a(court-imposed) DAPO.

“ if [the] Scottish Government are considering an additional power to work alongsidebail, special bail and use of remand it would be useful to have sight of the researchwhich supports the need for this and better understand what is not working in thepresent system.”Scottish Government, 20202

“ Yes [consent should be required], otherwise the person at risk may seek to makecontact with the alleged perpetrator which may lead to the victim enticing (even ifunknowingly) the perpetrator to breach ... conditions”Scottish Government, 20202

“ Sometimes a victim can be unsure, as the perpetrator has worn them down so muchthat they no longer have the ability to make a rational decision at the time as fear canbe overwhelming ... Therefore it is important that for the wellbeing and safety of thevictim that they are protected and decisions made for them ...”Scottish Government, 20202


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Section 1 of the Bill requires a suspected perpetrator (Person A) to be 18 years or overand the person at risk (Person B) to be 16 years or over before they can be the subject ofa DAPN or a DAPO. This mirrors the approach in the UK Domestic Abuse Bill for Englandand Wales.

Person A and B must be married, cohabiting or otherwise in an intimate personalrelationship with each other (or formerly in those relationships with each other). Otherfamily relationships (such as between adult children and their parents) or other types ofrelationship (such as between friends or flatmates) are not covered.

This is consistent with the approach taken by the Scottish Government in the 2018 Act,which created a specific criminal offence of domestic abuse. It differs from the approachtaken, for example, in England and Wales and the Netherlands, where protections canapply in other situations where people are sharing a household. 40 3


The Scottish Government did not consult on specific age limits for the peoplecovered by DAPNs or DAPOs.

The Scottish Government did consult on who should be covered by the proposedprotective orders and received mixed responses. 3

Of those respondents answering the relevant question, 47% thought it should be partners(and ex-partners) only. Fifteen per cent thought any family members in the samehousehold should be covered and 24% thought anyone living in a shared home should bewithin the scope of the proposed protection. (Fourteen per cent did not know). 2

Those respondents in favour of a wide definition highlighted that abuse could occurbetween, for example, parents and adult children, or people living in sharedaccommodation and argued the powers should be wide enough to take in such cases.

Respondents representing victims' groups and violence against women and gender-basedviolence partnerships were particularly likely to support restricting the scope of the powerto partners and ex-partners.

In this regard, they often referred to the fact that the domestic abuse offence in the 2018Act is also restricted to partners and ex-partners. Some of these respondents thoughtthere may be a need to consider separate legislation to address intra-familial abuse, withone respondent commenting this was a "challenging and complex issue", where thedynamics should be explored in a different consultation. 2

The term 'abusive behaviour'Section 2 of the Bill sets out the proposed meaning of abusive behaviour, a term whichwould be a key part of the test for making a (police-imposed) DAPN and a (court-imposed)DAPO. Section 3 of the Bill elaborates on the description of abusive behaviour (in a non-exhaustive way).


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https://services.parliament.uk/bills/2019-21/domesticabuse.html

Key points to note from sections 2 and 3 are as follows:

• Abusive behaviour is that which a reasonable person would consider is likely to causephysical or psychological harm. In this context, psychological harm includes fear,alarm or distress (section 2(2) and (5)).

• Behaviour may consist of a single incident or course of conduct (section 2(6)).

• It includes coercive and controlling behaviour (see especially section 3(3)).

• It includes behaviour directed at a third party for the purpose of causing physical andpsychological harm to the person at risk. For example, it includes behaviour directedat a child of the person at risk (section 3(2)(b)).

• The behaviour can also be directed at property (section 2(4)). Property includes petsor other animals and can belong to a third party (e.g. the parents of the person atrisk). 4

• As well as things said, done or otherwise communicated, the behaviour can includean intentional failure to do, say or otherwise communicate something (section 2(3)).

• The behaviour can be carried out by, or with the help of, a third party, including wherethat third party is acting unwittingly or unwillingly (section 2(4)).

Section 10 of the Bill sets out the test for making an interim DAPO. Abusive behaviouris not referred to in that test. Instead, 'harm' is the key concept.

Harm is not defined in section 10. The Scottish Government said to SPICe that theordinary dictionary definition of this term applies, with the references to harm insection 2 (as described in the first bullet above) likely to be a further guide tointerpretation for the courts. 49


The Scottish Government's consultation sought views on the test for imposing a DAPN orDAPO. In particular, whether there should be a requirement that the person hasthreatened violence, or whether there should be a wider test of what constitutes domesticabuse, including behaviour likely to cause psychological, as well as physical, harm. 3

Many individual respondents, in particular, referred to the importance of ensuring the testcovered controlling behaviour, financial abuse, emotional abuse and psychologicalabuse, as well as physical harm. A significant number of respondents (around 30% of thetotal number of respondents to the consultation) referred to the definition in the 2018 Actas an important starting point for the definition associated with a DAPN or DAPO. 2

Victims' group respondents were particularly likely to say that any test of 'harm' to theperson at risk, does not include a 'severity threshold' (for example, requiring a risk ofserious harm).

A minority of respondents referred to the importance of ensuring the test was not morewide-ranging than necessary. A small number of respondents (four) said it was importantthe test was objective and designed to deter false or malicious allegations.


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One legal sector organisation said that if it is to be made a criminal offence for such anorder to be breached (as is now proposed in the Bill) it is important that the test forimposing an order is "a high one". 2

Who can apply for a DAPOSection 8 of the Bill says that the police, but no other organisation or person, would beable to apply to the sheriff court for a DAPO.

This contrasts with the UK Domestic Abuse Bill for England and Wales, where the policyintention is that a range of individuals and organisations, including the police, can applyfor a DAPO. It also contrasts with the approach taken by the Scottish Government inrelation to the new female genital mutilation protection order (FGM protection order)introduced by separate legislation earlier this year. 15

On the rationale for the Scottish Government's policy position, the Policy Memorandumnotes (at para 72):


In its consultation, the Scottish Government asked for views on which individuals ororganisations should be able to make an application to a court to impose a DAPO. 3

A wide range of bodies were suggested by respondents, including the person at riskthemselves, family members of the person at risk, local authorities, housingassociations, third sector support organisations for victims of domestic abuse,healthcare professionals and others. 2

The most commonly suggested individuals and organisations, and the number ofrespondents who referred to them, are noted in Table 1 below:

Table 1: Individuals or organisations who should be able to apply for a DAPO

Organisation or individual Number of respondentsLocal authority/social work 34

Third sector/domestic abuse/women's aid groups 24

The person at risk themselves 22

Restrict to the police 7

(Note that totalling up the second column in the table gives a number of respondentswhich is greater than the number of respondents to the consultation. This is because manyrespondents referred to more than one individual or organisation in their response.)

Individual respondents were particularly likely to refer to local authority/social work officialsas people who should be empowered to make applications.

“ In this regard the Scottish Government recognises while others have a role inadvising the police when a person may be at risk, it is considered there is benefit tohaving a single prescribed lead on the application process in order to ensure clarityand consistency in the operation of the Bill's protective measures.”Scottish Parliament, 20201


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https://services.parliament.uk/bills/2019-21/domesticabuse.htmlhttps://beta.parliament.scot/-/media/files/legislation/bills/current-bills/domestic-abuse-protection-scotland-bill/introduced/policy-memorandum-domestic-abuse-protection-scotland-bill.pdfhttps://consult.gov.scot/justice/people-at-risk-of-domestic-abuse/user_uploads/290884_sct1218171740-001_protective_p3.pdf

Some respondents raised the concern that allowing individuals or their family to applydirectly to the courts for such orders could increase the risk of false allegations ofabuse from individuals who were actually perpetrators of abuse (but who wanted theperson at risk out of the shared home). One respondent also questioned whether thirdsector organisations had appropriate governance arrangements in place to decidewhether to make an application.

Other respondents saw advantages in widening out who could make an applicationbeyond the police. For example, one legal respondent noted:

Which court can grant a DAPO and in what circumstancesUnder section 8 of the Bill, it is the sheriff court acting as a civil court, not a criminalcourt, that would have power to grant a DAPO.

This contrasts with, for example, the position with a non-harassment order and the newFGM protection order. These can be applied for in the sheriff court when acting as a civilcourt, but can also be imposed by the sheriff court acting as a criminal court at the end of asuccessful prosecution. 17 15 Likewise, the DAPO proposed for England and Wales can beimposed by a criminal court. 41

Under section 8 of the Bill, a DAPO also requires an application to the (civil) court. Thisrequirement contrasts with the approach to the new FGM protection order, which will beable to be made by the criminal or civil court on its own initiative, without suchapplication. 50

Likewise, since 2019, a criminal court in Scotland has been able to make a non-harassment order in a domestic abuse case on its own initiative, without an application bythe prosecutor in the case. 51


The Scottish Government consultation sought views on whether a criminal court onconviction should be able to grant a DAPO. 3 (No question was asked relating to whether acourt should be able to act on its own initiative, rather than on application to it.)

On whether a criminal court should have power to impose a DAPO, 75% of respondentsanswering the relevant question were in favour and 20% were opposed. (Five per centwere unsure or provided an ambiguous response.) Individual respondents wereoverwhelmingly in favour, but organisations were fairly evenly divided on this point. 2

Those respondents in favour thought this was a useful tool, which avoided a further,separate civil court process. Those against, noted that a non-harassment order (NHO) can

“ A person at risk, family members and local authority professionals should also begiven the opportunity to apply to the court for a protective order which would provideflexibility. Where a person at risk is reluctant to involve the police, this would bebeneficial, and the court could act as the gate-keeper to ensure such an application isappropriate and proportionate.”Scottish Government, 20202


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be imposed at the end of a criminal case. They thought an alternative power might beconfusing and potentially counter-productive.

Note that a DAPO and an NHO do not share identical characteristics. For ease ofreference, the characteristics of the two types of order (a DAPO and an NHO) aresummarised in Table 2:

Table 2: The characteristics of a DAPO compared to an NHO

DAPO NHOShort to medium-term order Can be a long term or indefinite order

Can remove someone from a home and prevent themfrom returning

Can only prevent someone from returning to a home he orshe has already left

The content of a DAPN and a DAPOThis section considers the legal restrictions and requirements which can go into a (police-imposed) DAPN and into a (court-imposed) DAPO.

DAPNs

Section 5 of the Bill sets out (in an exhaustive fashion) what a DAPN can require thesuspected perpetrator to do, or refrain from doing.

The home and the vicinity of it

A number of the obligations proposed for the DAPN relate to the home of the person atrisk. They would apply regardless of whether it is also the home of the suspectedperpetrator (for example, he or she is an owner or tenant).

The obligations can require the suspected perpetrator to leave the home, surrender his orher keys and not return to the home or the vicinity of it.

One obligation also prevents a suspected perpetrator from "excluding" a person at risk.The Scottish Government believes this term (not further defined in the Bill) includeseviction of a tenant as well as behaviour such as changing locks or using physical force toremove someone. 49

Contact, or attempted contact (including with a child)

Other obligations relate to contact more generally. One obligation prohibits thesuspected perpetrator from approaching or contacting (or attempting to approach orcontact) the person at risk.

Another obligation imposes the same requirements on the suspected perpetrator inrespect of a child who usually lives with a person at risk, including a child of thesuspected perpetrator.


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All other obligations which can be imposed under a DAPN relate to the person atrisk directly.

For example, a prohibition on contacting or approaching other family members orfriends of the person at risk (or attempting to do these things) does not appear to bepossible under a DAPN.

DAPOs

Section 9 of the Bill says that, under a DAPO, a suspected perpetrator can be required todo (or to refrain from doing) anything which can be covered by a DAPN (as set out in thelist in section 5).

However, section 9 also says that what is possible under a DAPO is not limited to the listassociated with a DAPN - the sheriff may impose any positive or negative obligationthat they consider necessary for the purpose of protecting the person at risk from theabusive behaviour. No further examples of relevant obligations to guide the court areincluded in section 9.

Court powers to impose positive and negative obligations follows the approach for othermodern protective orders, such as the new FGM protection order 52 and the forcedmarriage protection order. 53 It also follows the proposed approach for DAPNs and DAPOsin England and Wales in the UK Domestic Abuse Bill. 54

On the other hand, as discussed earlier, non-harassment orders in Scotland can onlyimpose negative obligations on the suspected perpetrator. 55


As discussed earlier in the briefing (in relation to the concept of a DAPN and the conceptof a DAPO) there was majority support on consultation for the idea that DAPNs andDAPOs should contain measures relating to the person at risk's home.

The Scottish Government consultation also asked for views on whether wider obligationsshould be able to be imposed by a DAPN or DAPO relating to contact. 3 Sixty fiverespondents agreed this should be possible under a DAPN or DAPO, with tworespondents opposed. 2

Consultation respondents highlighted for example, that it was important that the suspectedperpetrator could be prevented from approaching the place of work or study of theperson at risk. Also respondents said, that, under a DAPN or DAPO, he or she should beable to be prevented from entering the homes of family members or close friends.

Consultees suggested a range of supplementary obligations associated with the person atrisk's home. For example, that the suspected perpetrator should not be able to evict, orotherwise exclude, the person at risk from his or her home. Another suggestion was anobligation not to damage the personal property of the person at risk contained within the


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https://services.parliament.uk/bills/2019-21/domesticabuse.htmlhttps://consult.gov.scot/justice/people-at-risk-of-domestic-abuse/

home.

The Scottish Government consultation also sought views on whether a child living withthe person at risk should be covered by a DAPO. Eighty five per cent of respondentsanswering the relevant question supported this approach, 6% were opposed to doing soand 9% of respondents didn't know or were unsure. 2

A number of respondents highlighted their view that children in such situations will face adirect risk of harm. For example, one victims' group respondent commented:

Three respondents raised the question of how any protective order put in place wouldinteract with existing child contact orders that may be in place. One respondent saidthat they considered it important that the requirements of any protective order should takeprecedence if there was any conflict between the requirements contained in it and anychild contact order.

The duration of a DAPN and a DAPOThis section of the briefing considers how long a (police-imposed) DAPN can last for andhow long a (court-imposed) DAPO can last for. Somewhat different considerations apply toeach.

For the proposed duration of a DAPN, human rights considerations are particularlypertinent because the notice is imposed without sanction from the court. On the otherhand, any notice must last long enough to be effective in achieving the Government'spolicy aims.

For the proposed duration of a (court-sanctioned) DAPO, a key policy choice is betweenan order lasting for the short-to-medium term, and one having longer-term effect. 1

The duration of a DAPN

Section 5 of the Bill, in conjunction with section 11, proposes that a DAPN lasts until aDAPO or interim DAPO is made (or, if no such order is made, until the associated courthearing ends).

Section 11 of the Bill says that, where a DAPN has been imposed, the court hearingabout a DAPO must be held not later than the first court day after an application is made(and must conclude on the day it begins). Furthermore, the police must apply for a DAPOnot later than the first court day after making a DAPN.

The effect of the relevant provisions is that a DAPN could last as little as two days,but it does depend on whether a weekend or public holiday affects the timing of theprocess.

“ Children experience all the same effects and risk as the non-abusive parent, andshould be subject to the same protections. Children are also often used as part of theabuse, especially where there is on-going contact.”Scottish Government, 20202


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In most European countries, the relevant time limits for short-term notices vary from oneweek to one month. 11 However, in England and Wales, police-imposed notices usuallylast 48 hours. 42

As noted earlier, the approach for England and Wales was criticised in the 2013 researchevaluation commissioned by the Home Office, for reasons including that it did not leaveenough time to prepare the legal case for any (follow up) court order. 44 However, thetypical 48 hour time limit has been largely replicated in the current UK Bill. 56


The mixed views expressed in response to the Scottish Government's consultation on thedesirable duration of a DAPN are broken down in Table 3: 2

Table 3: The preferred duration of a DAPN

The time a police-imposed order should have effect for before requiring confirmationby the court

Number ofrespondents

Up to a week 13

One week to two weeks 9

More than two weeks, up to a month 11

Longer than a month 7

A number of respondents highlighted concerns that the period of 48 hours currentlyapplicable in England and Wales is insufficient to enable a case to be prepared for court.

On the other hand, one respondent from the justice and legal sector backgroundhighlighted concerns that too long a period could raise human rights issues if an allegedperpetrator of abuse was unable to challenge the imposition of an order in court.

The duration of a DAPO

Sections 9 and 13 of the Bill say a DAPO could last up to two months initially and amaximum of three months in total.

Section 13 of the Bill also says an interim DAPO's maximum permitted duration must notexceed three weeks, including any extension to the interim DAPO.

A key point here is that the proposed policy approach to DAPOs in Scotland

justice committee agenda 33rd meeting, 2020 (session 5) · 2021. 1. 29. · j/s5/20/33/a justice...

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